Opinion
No. 344342
03-19-2019
In re M J Kilbourn, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Calhoun Circuit Court Family Division
LC No. 2016-000744-NA Before: SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court's order terminating his parental rights to the minor child MJ under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that child will be harmed if returned to the parent). We affirm.
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. Under the amended version of the statute, a parent who fails to provide proper care or custody "although, in the court's discretion, financially able to do so," may have their parental rights terminated. MCL 712A.19b(3)(g), as amended by 2018 PA 58. The termination order in this case preceded the effective date of the amendment; thus, the former version applies in this case. --------
For the first 18 months of these proceedings, respondent complied with his service plan and made noticeable positive progress. Eventually, the trial court ordered MJ to be placed with him. However, two days before reunification was to begin, respondent was involved in a criminal incident, and shortly thereafter, he began missing drug screens and submitting drug screens that were positive for methamphetamine. Respondent became incarcerated pending multiple felony charges. As a consequence, the trial court stayed the placement order and later terminated respondent's parental rights.
Respondent argues that the trial court erred when it found that statutory grounds for termination existed. We disagree.
"To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). This Court reviews for clear error a trial court's finding that a statutory ground was proven by clear and convincing evidence. Id. "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
Respondent's parental rights were terminated under MCL 712A.19b(3)(c)(i), (g), and (j). The relevant subsections provide:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:If we conclude that the trial court did not clearly err in finding one statutory ground for termination, we need not address the additional grounds. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
* * *
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.
Termination of parental rights under MCL 712A.19(b)(3)(c)(i) is proper where "the totality of the evidence amply supports that [the respondent] had not accomplished any meaningful change in the conditions" that led to the adjudication and would not be able to rectify those conditions within a reasonable time. In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009).
The trial court entered the initial disposition order on March 8, 2017 and terminated respondent's parental rights on May 24, 2018; therefore, "182 or more days" had "elapsed since the issuance of an initial disposition order." MCL 712A.19b(3)(c)(i). The trial court took jurisdiction over MJ because of respondent's criminal history and because he had missed drug screens, which the court considered "in combination with the extensive criminal history and the possible risk of domestic violence." The trial court found that termination was proper under MCL 712A.19b(3)(c)(i) because these conditions persisted: respondent had been involved in criminal activity and had started using methamphetamine again by the termination hearing.
The record supports the trial court's finding that the conditions that led to adjudication continued to exist. With respect to missed drug screens and drug use, respondent missed multiple drug screens and submitted drug screens that were positive for methamphetamine. Respondent appears to have relapsed into drug use and had a recent pattern of refusing drug screens or submitting positive drug screens. Therefore, the record establishes that respondent did not accomplish "any meaningful change" regarding drug use since the stay of his placement order, and the trial court did not clearly err in finding that respondent failed to rectify his substance abuse issues. See In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012); Williams, 286 Mich App at 272.
Respondent has also failed to make "any meaningful change" with respect to his involvement in criminal activity. See id. Respondent was involved in a criminal incident when police responded to a call of shots fired at his home and discovered a gun in his backyard. Respondent was then incarcerated pending multiple felony charges and was using methamphetamine again. Respondent had returned to illegal activity and had not shown that he could remove himself from this criminality within any reasonable time. Therefore, the trial court did not clearly err in finding that respondent failed to accomplish "any meaningful change" with respect to criminality. See Olive/Metts, 297 Mich App at 40; Williams, 286 Mich App at 272.
Either of these grounds support termination under MCL 712A.19b(3)(c)(i). See, e.g., In re Frey, 297 Mich App 242, 246-247; 824 NW2d 569 (2012); Williams, 286 Mich App at 272-273. Therefore, the trial court did not clearly err in finding that termination of respondent's parental rights was proper under MCL 712A.19b(3)(c)(i). Because we hold that the trial court did not err in finding that grounds for termination existed under MCL 712A.19b(3) (c)(i), we need not address the additional grounds. See In re HRC, 286 Mich App at 461.
Respondent next argues that termination of his parental rights was not in MJ's best interests. We disagree.
Once a statutory ground for termination is established, the trial court shall order termination if it finds by a preponderance of the evidence that termination is in the best interests of the child. Moss, 301 Mich App at 90. We review the trial court's decision regarding best interests for clear error. In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009). The trial court may consider "the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of a foster home over the parent's home[.]" Olive/Metts, 297 Mich App at 41-42 (citations omitted).
The trial court did not clearly err when it concluded that the termination of respondent's parental rights was in MJ's best interests. The trial court recognized the "strong love bond" that respondent and MJ shared, evidenced by MJ's excitement whenever he saw respondent. However, this bond is only a single factor to be considered. It does not negate respondent's inability to parent MJ safely, MJ's need for stability, and MJ's strong ties to his foster home. Respondent is not able to provide a safe and stable living environment for MJ while he is incarcerated, or while he is using methamphetamine and engaging in criminal activity. MJ is bonded to the foster family he lives with, and he is living in a stable preadoption home. MJ has been with this foster family for 26 months, a relatively long time compared to his young age. He no doubt has a sense of permanency and stability with the foster family. These facts all weigh in favor of the trial court's finding that termination of respondent's rights was in MJ's best interests. See id. While MJ does have a strong bond with respondent, the stability and permanency that MJ's foster family can provide outweigh this bond. See id. The trial court properly considered the record as a whole, and it did not clearly err when it found that termination of respondent's parental rights was in MJ's best interests. See In re Jones, 286 Mich App at 129.
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly